FOIL's future is on trial

FOIL's future is on trial

Former SUNY Polytechnic CEO Alain Kaloyeros, right, walks with his lawyer, Michael Miller, during a break in the trial.

Photographer: Craig Ruttle/Associated Press via New York Times

There are a number of underlying premises associated with New York’s public-records law, and one that continues to erode during the summer months filled with corruption trials is trust.

Over the last two weeks, even when a small step was taken to build that trust, contempt for the state’s Freedom of Information Law (FOIL) was on display in a Manhattan courtroom during the trial of the former head of SUNY Polytechnic Institute, Alain Kaloyeros.

First, the small step. The unveiling of the public-records portal, Open FOIL NY, earned plaudits from some key advocates, and while the step to streamline processes will undoubtedly create a more efficient system through a digital form, more advancements are needed for the measure to truly become progressive.

The portal allows a FOIL petitioner to request records from different public agencies, and with 59 departments and public authorities, an unwieldy system is corralled a bit. This is also the first step in a multi-year process to create a public-facing tracking system, but other states and cities implemented these steps years ago.

The new portal also lists the addresses of agencies, which is helpful with communication, but only the a generic “public information officer” for each. Most state PIOs are attorneys and all have names. This is akin to someone emailing an “[email protected]” address to a private company. Most people do not.

Also on the digital form, the government requests your organization/affiliation. Even though this is not a required field, it does raise questions about purpose, given that there is no timetable on when records are fulfilled (there is for response of request received and record acknowledgement). Will certain petitioners receive different considerations? As of now, there is no explanation as to why — and for what.

Which leads to the Buffalo Billion trial.

FOIL is always a work in progress, attempting to address contemporary issues. Emails conducting government business are public record. The public trusts this to be true.

The reality is that some public officials circumvent the process, and Kaloyeros attorney Reid Weingarten underscored a well-known truth. He said it is “almost a sport” for New York officials to use private emails to avoid FOIL obligations.

This again was reiterated when others tied to the Buffalo Billion trial communicated via private email and only came to light when federal prosecutors subpoenaed Google for a number of email accounts, including that of lobbyist-turned-state-hired consultant, Todd Howe.

Howe has become a central figure in the Buffalo Billion trial because of his involvement, actions and ties to the current administration. (Howe played another role as a key witness in the Percoco corruption trial earlier this year.)

It was also found that Howe targeted a non-profit news organization, The Investigative Post, which, along with its founder, Jim Heaney, should be credited for pulling the first thread in what is now transpiring. It was found during the trial that Howe contacted Investigative Post donors in an attempt to dissuade them from supporting the news organization.

Between 2014-15, Heaney and Post submitted a number of FOIL requests to SUNY Poly and Kaloyeros, requesting various communication in compliance with FOIL and the state Open Meetings Law (OML). In total, the Post has written more than 60 Buffalo Billion-related stories, with most piquing the interest of prosecutors and the public.

The information requested via FOIL — and subsequent fallout — did not come without a legal challenge and threats from Kaloyeros and other public officials. This was four years ago. There is little evidence of how many other public officials circumnavigated the system before or since.
Trust takes time to develop. Open, two-way communication often builds trust.

So does open government.

Brett Orzechowski is an assistant professor of management and media at Utica College. His book, “FOIL: The Law and The Future of Public Information in New York,” is available at Syracuse University Press.